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July 24, 2009

What should a female Solicitor General wear to the U.S. Supreme Court? It's a hot-button issue. For some excellent analysis, see Dahlia Lithwick.

The topic of SCOTUS-appropriate attire for a Solicitrix General keeps coming up. It popped up yesterday in Solicitor General Elena Kagan's interview with Chief Judge Alex Kozinski, at the Ninth Circuit Judicial Conference in Monterey.
From an attendee:

[T]he solicitor general was just asked what she will wear at the Court, and she declined to say. But Judge Kozinski followed up to ask -- expressly on your behalf -- whether she would be wearing Jimmy Choos. She said "no," because the heels are too high to stand in while she argues.

Thought you'd want to know this breaking fashion news!

Indeed. With respect to SG Kagan's weakness for comfortable footwear, A3G is disappointed but not devastated. Elena Kagan in Jimmy Choo? That would have been faboo. But Ted Olson or Paul Clement in Manolos? Now that would have been a sight to behold. [FN1]

You can read more -- about this specific exchange, as well as the Kozinski-Kagan conversation more generally -- over at dagblog.

[FN1] For those of you who view references to Jimmy Choos or Manolo Blahniks as clichéd, A3G's friends at Fashionista recommend Nicholas Kirkwood. Check out the dizzyingly high heels, plus the distinctive platform jutting out in front. Aren't they to die for?

July 17, 2009

You can email the above-signed blogress at Clerquette@gmail.com, or find her on Facebook and Twitter!

Like much of the blogosphere, Clerquette found herself suffering from hearing fatigue by Day Four of the Judiciary Committee's waltz through SS's life, times, and respect for stare decisis. Alas, dear readers: the grotesque kabuki that defines such hearings is too much for even the most devoted Article III groupie.

Clerquette also hastens to add that, for better or worse, Judge Sotomayor gave her detractors very little to work with. The WLW issue was, in fact, thin gruel, and (in this blogress's humble opinion) left most of us wishing for a rhetorical sundae topped with something rhetorically hot and gooey to fill the hours of questioning. When, in response to Lyndsay Graham's questioning, SS finally declared that she "regretted" making the WLW comment, Clerquette prayed that wondered whether this confession would bring full absolution and permission to move on -- for all the rest of us, at the very least.

Between WLW-Gate and the fact of SS's humble upbringing in a Bronx apartment complex,

descriptions of which grew increasingly Dickensian as the hearings progressed, the questioning took on a distinctly Rain-Mannish quality as the days wore on. ("Wise Latina Woman. Bronx Housing Project. Wise Latina Woman. We're counting cards. Counting cards. Gotta watch Jeopardy at five!") Accordingly, Clerquette was surprised to find an article, in the ABA Journal, entitled "Top 10 Quotes From the Sotomayor Hearings." Were there ten quotes that were solid gold, the stuff of a "top ten list"? The folks at the ABA are professionals, and if they say so, it must be true.

Check back later today or tomorrow for a quick spin through Day Four, a wrap-up of the week in hearings, and any other judicial gossip this blogress can muster. Feel free to drop me a line, Groupies -- especially if you have any insight re: Sotomayor's prospective replacement on the Second Circuit. SS will be voted out of Committee on Tuesday, and the full Senate will weigh in shortly thereafter. That means some vacant real estate at Pearl Street ... who will occupy the diva's former digs?

July 15, 2009

2:29: Clerquette joins the post-lunch session in progress. Sen. Specter has been having his way with SS for a while ... but who are we kidding? The afternoon session is about Al Franken, and whether he will throw the bored spectators a comedic bone.

In the meantime, Specter explains why cameras in the courtroom are a must. As we know, Justice Souter (and his hypothetical dead body) were vociferously anti-camera; but with him out of the way, what, if anything, should stand in the way of the what would basically be the BEST reality show EVER?

2:36: Senator Franken takes the floor. He was delighted to hear that SS loved Perry Mason because -- guess what? -- HE loved Perry Mason, too. OMG. But, says Franken, he was surprised that the show inspired SS's decision to become a prosecutor, since the prosecutor, Berger, always lost. Her identification with him (he posits) shows her gritty determination. Clerquette hastens to add that SS may have believed, based on Berger's performance, that prosecutors have truly awesome job security.

Franken wants to talk about internet regulation, and the importance of access to the internet. Clerquette sincerely hopes that Franken will not refer to internet access as a right, or worse, "a fundamental right." Mercifully, he sticks to net neutrality.

Now: on to judicial activism, which Sen. Franken asks SS to define. SS responds by expressing her disdain for the term. They take a spin through the voting rights act, and SS declines to express her view. Franken seems testy. He wants answers, dammit! He waited six months to join the Senate, during which he worked up an unquenchable thirst for definitive responses! Don't mess with him now!

After a brief foray into abortion rights (to which he receives the standard answer), Franken asks the all-important question: what was the one case that prosecutor Berger won? SS says she can't remember, to which Sen. Franken responds, "didn't the White House prepare you?" Finally! His first Senatorial joke. Sen. Leahy adds that the Committee will not hold her inability to answer the question against her. Aw, Senator Leahy; you're funny, too.

9:30: Sen. Leahy opens today's session, sounding slightly less burbly. Judge Sotomayor is finally dressed like a New Yorker, in a black suit.

9:34: Sen. Cornyn opens by reminding SS of that time, at band camp, when he told her that, by God, she would get an up or down vote if he had anything to say about it. Clerquette thinks that someone (ahem) wants to be rewarded with a thank-you and a Fudgie the Whale cake. Determined to leave no stone unturned, he turns to SS's WLW-ism. Did she really think that she could make a better decision than an old white dude? Did she really think that her rhetorical flourish had fallen flat?

Although SS probably wishes she could answer with a simple "See id.," she handles the question deftly. SS seems particularly sassy today; Clerquette thinks she has her "bench vibe" on.

Sen. Cornyn questions SS about a comment that the law is, at times, "in flux." Does this mean that judges must step in and make something less ... fluxy? SS responds by reassuring him that judges do not, of course, make law [except -- as one of Clerquette's law school professors would say -- when they do]. After she answers (in a manner too substantive and meaty to be truly satisfying), the Senator grills her about her statement that "physiological differences" might affect the way judges approach their task. Might she have been referring to ... being a woman? A wise, Latina, woman? SS's answer is too abstract for Cornyn's tastes, and he tells her that he can not reconcile her "physiological difference" theory with her "fidelity to the law." He appears to think, but does not say, "but whatever."

Next, Cornyn turns to an old favorite: abortion. He wants to know whether SS was asked, by the White House vetting team, about her views on abortion. Nope, she says; she wasn't. He asks her about [former partner] George Pavia's comments about her view on abortion. SS seems annoyed; she doesn't recall having discussed her views on abortion (or other issues) with Pavia, and assures the Committee that he has not read her jurisprudence. Why? Because he's a corporate lawyer, and corporate lawyers tend to have a rather, um, selective interest in actual law. Have we witnessed an early benchslap? You go, girl!

He finishes with a waltz through Ricci, taking SS to task (again) for the panel's per curiam ruling. Sloppy, sloppy, he seems to say. Hey, SS responds: Per curiam happens.

10:00: Sen. Cardin takes over, tossing SS a few softballs. He gives her the opportunity to explain that she is not a big, mean, bully ... just one, little ol' member of a hot bench. (With a ten minute limit on oral arguments, which makes lawyers MAD!) Then: on to civil rights, and SS's interest in "giving deference to Congress," especially where civil rights are concerned. (Clerquette thinks the Senator may have stumbled on a point perfect for inclusion in SS's Match.com profile: "I enjoy white Saabs, baseball, and deferring to Congress, especially where civil rights are involved. Also, fine wine and Fellini films.")

After a foray into Deference 101, Cardin turns to diversity. Might we finally tackle the paradox of composing a diverse Supreme Court, but then taking a nominee to task for identifying her own diverse qualities? Nah. But we will talk about the "role of diversity in society." Huh? Maybe Cardin considered narrowing it down a bit, but he clearly decided not to. SS uses the word "harkens," and then apologizes for her recent overuse of the word "harkens." Clerquette is utterly charmed by her awareness of the need to avoid word repetition. They cover other hot topics, including the importance of pro bono work.

10:37: Sen. Coburn begins by apologizing for outbursts, in the chamber, by vocal pro-lifers. Sure - they can get a little overexcited, but one shouldn't judge all pro-lifers by such a wacky bunch.

Coburn decides to move away from the limp, dead horse of SS's extrajudicial speeches, and on to abortion. Let's talk, he says, about what you would do if I were 38 weeks pregnant and found out that my baby had spina bifida. Ignoring the horrific image of Sen. Coburn's pregnancy, SS asserts that she cannot answer in the abstract. He throws her another hypo designed to elicit her opinion re: viability. If we have viability at 21 weeks, he says, shouldn't that help further erode the framework of Roe v. Wade judges consider the ramifications of advancing technology? SS says that she cannot talk about what "should" be done; only what the courts have done, which is precedent. Which, unlike one's empathetic, womanly urges, must always be followed.

Next: The Second Amendment, and whether SS believes that the right to bear arms is a "fundamental" one. SS notes that, under [the Supreme Court's decision in] Heller, the right is not "fundamental," and under [the Second Circuit's opinion in] Maloney, it is not incorporated. As she did yesterday, SS offers the (somewhat motherly) qualification that, just because the right to bear arms is not "fundamental" in the technical sense, that does not mean that it is not very, very important and special in its own way. You get a gold star, Second Amendment! Yay! Alas, SS notes, she is helpless before the all-consuming power of precedent, and can offer no opinion as to whether gun rights should get a little more Constitutional love.

Coburn makes several attempts to elicit SS's own belief about whether there is a personal right to bear arms. She dodges. But, in the course of explaining state laws concerning self defense, she constructs a hypo in which she is physically threatened, but instead of reacting immediately goes home to fetch her firearm. She quickly adds that she is speaking hypothetically, and would never actually go home and get a firearm, which she does not have anyway. As she is explaining that she wants to avoid any misunderstanding (a la WLW?), Sen. Coburn interrupts to say that, if she did, in fact, run home and get her gun, she "would have some 'splainin to do." Ouch. Clerquette wonders whether Coburn will later regret having responded to the wise Latina woman in the parlance of a slightly ditzy woman's unwise Latino husband.

They take a quick spin through the topic of Foreign Law: Friend or Foe? SS again swears that, while she might read and consider foreign law (in the same way that one might read The Little Prince, for example, or a translation of Babar) she would never interpret the Constitution based on anything so ... foreign. He passes the baton to the fabulously named, though slightly lispy, Sen. Whitehouse.

11:09: Sen. Whitehouse tells SS that he recently got "goosebumps" thinking about the wonder of her nomination. Then he says "goosebumps," or its idiomatic equivalent, in Spanish. SS laughs heartily. Senators are funny!

Whitehouse (who must have fantasized about running for President, at some point) takes SS through scintillating topics such as: the jury system, law enforcement, the warrant requirement, and privacy rights.

Whereupon the Committee adjourns for a fifteen minute break.

11:55: Hearing resumes with some Senatorial levity from Senator Klobuchar, who commends SS on her patience and delights the crowd with a story about having encountered Mama Sotomayor in the bathroom. (Mama, it turns out, had plenty to say.) Klobuchar's own mother has apparently been sending her messages like, "Sen. Feinstein was brilliant. What are YOU going to say?" Clerquette is charmed by this anecdote, which illustrates the universal dissatisfaction of mothers.

Sen. Klobuchar, a former prosecutor herself, wants to chat about SS's experience as a prosecutor. They chat about duty, difficult charging decisions, and Perry Mason. The Senator addresses the concern that SS is will make "emotional" decisions, and, like Schumer, delves into cases intended to demonstrate SS's cold, hard, non-empathetic fidelity to the law. Clerquette wonders if Schumer and Klobuchar were inspired by [former Judge and UTR favorite] Michael Chertoff's suggested question for Sotomayor, in this NYT Op-Ed piece. (FYI, Sec. Chertoff also covered the foreign law issue. Thanks, Sec. Chertoff!)

12:25: Sen. Kaufman takes the floor. Rather than discussing SS's prosecutorial background, he would like to talk about her career in private practice. Yawn. SS offers several lofty reasons for deciding to go into private practice. She does not mention "the desire to make more than the minimum wage salary earned by public servants." SS tries to make grain trading contracts and dealer relations (albeit Ferrari's) sound exciting.

Sen. Kaufman takes SS through a variety of topics related to commercial practice, peppering his questions with statements like, "I am so glad we're talking about commercial law!" Clerquette wonders how many people have gone to lunch early. When SS veers into Chevron deference, Clerquette wonders how many people have stayed awake.

Whereupon the Committee breaks for lunch. The hearing will resume at 2.

July 14, 2009

We're back, Groupies! The above-signed blogress will be liveblogging the confirmation hearings again today. Stay tuned, and remember to refresh your browser (and scroll down) for the latest updates.

9:42: Judge Sotomayor has donned a delightfully flattering red suit for her day in the hotseat. Better yet, in stark contrast to yesterday's wooden demeanor, she appears ready to rock.

Senator Leahy kicks off the festivities. First, he makes a half-hearted foray into Ricci v. DeStefano Then asks SS whether she would decide the case differently today, to reflect the Supreme Court's recent ruling in the case. Did that just happen?

9:53: Sen. Leahy raises the WLW issue. Then he throws it in the air like a shuttlecock, and gently tosses it to SS. For the record: SS does not believe that any ethnic group is possessed of superior wisdom and judicial ability. You heard it here first.

9:57: Moving right along, Sen. Leahy turns to the Second Amendment. Specifically, he asks, does SS have an open mind with respect to whether the Second Amendment guarantees a fundamental right, and is applicable to the states? SS explains that gun rights are important, but not technically "fundamental." In the course of answering, she cuts Senator Leahy off. Ah, Nino ... you may have met your match.

10:04: Next: the Commerce Clause. SS affirms that she is all for it. Senator Leahy thanks her.

10:05: Sen. Sessions takes the reins, and immediately compliments SS for asserting her fidelity to the law. But as Sessions giveth, he taketh away, and he laments that SS's statement is contradicted by 15 years of wise, Latina judicial gunslinging. So, he asks (affecting a "gotcha" tone evocative of law school trial advocacy), what does SS really think?

SS responds snippily, telling Sen. Sessions that her unfortunate comments about judicial policy-making, taken in context, make clear that she does not believe in judicial policy-making. As for whether she is truly impartial, SS insists that she is. Doing so requires a delicate stroll down the fine line between "fidelity to the law," and acknowledging that she is, in fact, a jurist with the perspective of a wise Latina woman. Not that there's anything wrong with that. This blogress wonders how much more strained this debate, about the role of life experience, can get. Can we all agree (for example) that Justice Scalia and Justice Ginsburg probably have different points of view because they're ... different?

10:22: Sen. Sessions turns to Ricci. Oddly, he asks SS if the fact that the firefighters were the victims of discrimination was "one of the facts she chose not to see." Clerquette wonders what answer Sessions hoped for, but is reasonably certain that he will be disappointed.

Sessions devolves into a confusing, and somewhat bizarre, review of Ricci's procedural history, followed by a slightly more confusing allusion to Adderand. He chides SS for the panel's per curiam opinion in Ricci, and the Court's decision to deny rehearing en banc. Then he asks SS whether the panel was "fair" to Frank Ricci and his fellow firefighters. Tread carefully, SS! No one likes a firefighter hater.

10:38: Sen. Kohl steps to the plate, and opens with a hard-hitting question: Could reasonable minds differ as to the appropriate outcome in Ricci? Well? Could they? What will she say?? Sen. Kohl is relentless; he follows by asking SS whether her low reversal rate proves her commitment to applying the rule of law. Another nailbiter! Next, Kohl urges SS to pick a favorite from amongst the sitting justices. She politely declines, instead choosing Justice Cardozo. (BTW, he was wise and impartial, and some suspect that he was also Hispanic.)

11:28: Sen. Hatch, who is viewed as a possible Committee vote in SS's favor, begins with a crowd-pleaser: the Second Amendment. Hatch asks SS whether she believes that the right to bear arms is not a fundamental one; SS responds irritably, insisting that it is an open issue upon which it would be inappropriate to opine. She is clearly referring to cases pending before several circuit courts of appeal. "So," Hatch says, "you admit that it's an open issue?" SS looks puzzled, as, Clerquette suspects, do many lawyers within earshot. They banter about incorporation, and whether the Second Amendment applies to the States. Hatch tries to corner SS into agreeing that rational basis is a "permissive standard;" unwilling to commit to Hatch's [somewhat opaque] point, SS appears flustered. Each time Hatch says "permissive standard," SS seems more rattled.

Hatch changes gears. Time for Ricci! Why the per curiam opinion? he asks. Why didn't Judge Cabranes know about the opinion until he read about it in the newspaper? If it was a case of first of impression, what precedent did the panel follow, and why didn't they explain it more thoroughly? Hatch jumps from point to point. SS follows, visibly cranky and slightly confused.

12:00: For reasons that remain unclear, Miguel Estrada, the red herring of yesterday's hearing, has come up again. Sen Feinstein wonders how Miguel Estrada became part of the confirmation pricess.

3:15: It appears that one can miss several hours of hearing juiciness and be no worse for the wear. We rejoin the hearings in progress, and find John Kyl giving SS the business about the WLW issue. Ah, the more things change ...

Kyl asks whether extrajudicial speeches about women and minorities on the bench reveal SS's belief that women and minorities (i.e., wise Latina women) are better decision-makers. SS sounds as though she is getting tired of talking elliptically about life experiences. She tells Kyl that, in "decision after decision after decision [etc.]" she has made it clear that her decisions are not based on biases. Despite a[nother] long, tactful disquisition about the richness of life experience, Kyl is not completely satisfied. He wants to know whether SS believes that race, gender, and ethnicity make her judicial decisions better than those of an old white dude, and focuses on a speech in which SS said that, if enough women and minorities occupied the bench, the law would begin to change.

Gotcha? Nope: still not. After a painstaking explanation of the differences between men and women, SS falls back on the ol' "I guess my rhetorical flourish failed." Could this incident be know, from this day forward, as RhetoricGate?

Whereupon the hearing is adjourned for a ten minute break.

3:54: Sen. Schumer takes the floor. Questioners have been focused on SS's alleged sympathies and biases, he says, but the Chuckinator wants to talk brass tacks. Specifically, he would like to discuss her long, illustrious record. He intends to prove that she will not "put her experience and empathies" before the rule of law.

As a preliminary matter, Sen. Schumer asks, can SS promise to be fair and balanced? SS says she will. Do you swear, he presses on, not to let your empathies displace the rule of law? She will. He moves on to specific cases. First: In re Air Crash off Long Island. Did SS have sympathy for the plaintiffs in the case, who were the survivors of those killed in the crash? If you cut her, does she not bleed?

SS confirms that, yes: like the world at large, her heartstrings were plucked. Nonetheless, she did not feel that the plaintiffs had a remedy under the law. Ah ... Clerquette sees where this is going, Chuckinator. Schumer is making the case that SS is non-empathetic (even when the parties in question are the survivors of people killed in a plane crash) and, a fortiori, impartial.

Next: Washington v. Rockland County, a case in which the plaintiffs were law enforcement officers. SS, like any good American, loves heroes like law enforcement officers, right? Yet she ruled against the officers. Once again, folks, this shows that SS is no creampuff. She can be a coldhearted WLW if need be.

We move on to Boykin v. KeyCorp, in which an African American woman was denied a home equity loan. Did SS sympathize with the dissed putative homeowner? Well, of course she did, but the woman's claim was untimely. Too bad! Empathy is no match for the formidable enemy known as "the statute of limitations."

Schumer moves on to Pappas v. Giuliani, in which the plaintiff was "repugnant," rather than cute and fuzzy. Pappas was dismissed from the police department for distributing "patently offensive," hateful, and racist, materials at work. Nonetheless, SS was able to put aside her feelings (which were non-empathetic, in this case) and stand up for the nasty little bugger's right to engage in hate speech. So unpalatable ... but so impartial, SS. (That, dear readers, is judicial hotness.)

And how about a group of asylum cases? Schumer asks. Well done, Chuckinator: Asylum cases are a perfect exemplar, a crucible for "greater subjectivity." They feature sympathetic plaintiffs, murky law ... in other words, all of the ingredients for a delightful dish of judicial activism.

But none of these factors chipped away at SS's magic shell of impartiality. No matter what her nougaty, wise, empathetic heart told her to do, she doled out justice with cold, hard efficiency. Schumer asks SS to explain her approach to these cases, blinking to communicate, in code, that this might be the opportune moment to champion Honduran immigrants. Mercifully, SS glides through an explanation of the byzantine immigration/asylum appeals process. At one point, she threatens to stray into substance, but the Chuckinator steps in. In short, he says, do these cases show that, in SS's courtroom, the rule of law is king? Yes, SS says humbly. Sounding nunlike, she mentions her "fidelity" to the law. She won't leave home without it.

Next, Schumer asks about the role of foreign law, the doctrinal borrowing of which is downright un-American. SS answers that she would never rule according to foreign law, which is non-binding. And, Sen. Schumer says, you would never base a decision on an icky non-binding source, would you? (Of course she wouldn't!) To hammer home his point, he mentions that Nino once used no fewer than five dictionaries as sources for different definitions of the word "modify." His point: the dictionary isn't binding, but Nino - the ultimate textual adherent - used it anyway. Like the dictionary, SS explains, foreign laws are just "tools." Tools, that is, for making wholesome, all-American decisions.

4:22: Senator Graham takes the floor. He tells SS that she has come across, in the hearings, sounding awfully like a strict constructionist. But in her extrajudicial speeches, he posits, she sounds tres activist. He wants the real Sonia Sotomayor to stand up. His pronunciation of her name, "Sodomyor" conjures the image of an American tourist in Paris, asking directions to the Loovrah.

Her speeches, Graham says, have been problematic. FYI, he tells her: don't become a speechwriter if "this law thing doesn't work out." FYI, Sen. Graham: don't become a condescending jerk if your candidate doesn't win the election. Whoops! Too late.

Graham wants to talk about legal realism. He asks SS to explain the concept, but then interrupts her to note that it's "kinda touchy-feely." SS tells him that she would not consider herself to be a disciple of legal realism. Well, then, Graham says: are you a strict constructionist? SS does not want to be labeled. Clerquette notes that the first judicial philosophy was too soft; the next was too hard. Will the third one be juuuuust right? Alas, Graham asks next whether SS is "an originalist." Maybe not.

On we go, to whether the Constitution is a living thing. Well, SS says carefully, it is immutable, to the extent that it has lasted for 200 years. It "does not live" she says, other than to be timeless. Clerquette smells a soundbyte! SS concludes that the Constitution has not changed ... but society has.

Graham asks SS what the best way for society to change might be. Clerquette thinks that perhaps the Senator should discuss this broad, sprawling topic later, over a joint illuminated by a lava lamp. Mercifully, he veers quickly into whether the Constitution mentions abortion. SS tries to answer the question, but walks into a trap. Abortion is not mentioned specifically, she says, but the Constitution makes broad provision under the due process ...

"Aha!" Graham says (or maybe not, but he definitely wanted to): that brings us to SS's speeches, which indicate a downright mavericky desire to use these "broad provisions" to make new law, rather than leaving that task to the big boys, or at least the elected ones.

Apropos nothing, Graham announces, "I like you." Then he offers the choice fruits from SS's review in the Almanac of the Federal Judiciary, including the pronouncements that she is "a terror on the bench," that she is "temperamental, excitable, and seems angry," "overly aggressive," "not very judicial," "out of control," "nasty to lawyers," and "can be a bit of a bully" (to name a few). He asks her why she is such a big, mean bully.

Sounding almost girlish, SS says that she asks some "tough questions." The Second Circuit is a "hot bench," she explains, and litigants are only given ten minutes for oral argument. Many attorneys find this "difficult and challenging."

"If I may," Graham responds, "they find you difficult and challenging." Oh, snap! Clerquette waits with bated breath for SS to open up a can of judicial bully on Graham's ass. Instead, she answers irritably, but calmly.

He moves on to the WLW situation, though not before a quick detour through Iraq, Afghanistan, and terrorism. (Relevance: unknown.) If you wanted to change Iraq or Afghanistan, he says, women might be helpful. But here in America, the thought that women and minorities might change the rule of law as we know it is downright disturbing. Again, Graham asserts that, if he tried to inspire someone by claiming that he would make a better Senator because he is a Caucasian male, he would have been in deep doo-doo. Putting aside the fact that, as a white man and a Latina woman, Graham and SS may not be similarly situated (sorry, Senator: analogy fail) Graham actually sounds a little ... jealous.

Moving on to September 11, 2001, Graham asks SS what Islamic fundamentalists think about women. (Nothing good). Are we at war? he asks. (Yes, we are.) Does SS know anything about military law? (Not really.) Are people out there right now, "plotting our destruction"? (Yes, probably.) Where is this going? Well, dear readers: straight to the detention of enemy combatants. Graham takes a rain check on further questioning.

Now, on to the Puerto Rican Legal Defense Fund, and its position on taxpayer funded abortions. SS says that she never read the briefs, in which, according to Graham, the organization argued that the denial of public funding for abortions was akin to slavery. Using the Fund as a proxy, Graham probes SS for her views on abortion (as a public health issue) and the death penalty. They flirt with the issues, and agree (in a manner of speaking) to revisit them at a later date. SS looks unenthused.

4:54: Senator Durbin, the Majority Whip, takes over. SS is visibly relieved, and takes a moment to laugh heartily at a Senate-caliber joke. Durbin cuts to the chase: WLW-Gate. It's not so bad, Durbin says, if you think about all the boneheaded decisions that [ostensibly] wise white men have made. See? Problem solved.

Durbin takes SS for a mild spin through the death penalty. SS restates the law, which she is, of course, committed to following. Durbin asks her to opine on the disproportionate impact of the death penalty on racial minorities. SS discusses a case in which the defendant claimed that the prosecutor's decision to pursue the death penalty was racially motivated, which she explored in a hearing. Of course, she made a narrow determination based on the facts and law before her. Duh.

Durbin moves along to the crack/powder cocaine sentencing disparity. Although he voted for it, he now regrets it. How does SS feel, he asks, about the issues of "race and justice" presented by the Sentencing Guidelines? SS concedes that, though it must be "unsatisfying" when a nominee does not "engage directly" with the issues at hand, Durbin probably can't get no satisfaction. In the case at issue, she followed the law (which did not then contemplate the safety valve exception). What's a girl to do? One can only. Follow. The. Law.

Of course, the Guidelines are no longer mandatory. Clerquette wonders: are we really going to get into this?? A thorough discussion of the Guidelines could take this hearing into extra innings. Fortunately, SS declines to discuss the issue, begging off because it remains in play. Bless your heart, SS. Durbin finishes with a quick foray into immigration, and whether the process needs to be streamlined. Simple answer, dear readers: yes. Can SS go home and put her lame foot up now?

July 13, 2009

At long last, Groupies - the confirmation hearings have arrived! The theater, the spectacle, the longwinded speeches, the chance to watch the sausage being made (or at least thinly sliced) ... what's not to delight in? Clerquette hopes you've had some time to tune in, and reminds you that you can live, or relive, the magic with our liveblog coverage of the hearings here and here .

If you happened to miss the hearings, allow Clerquette to summarize them thus, in three short words: Wise Latina Woman. Yes, dear readers: Wise Latina Woman ("WLW") was the phrase of the day, and may join "bailout," "too big to fail," and "Yes we can!" in the lexicon of horrible overuse by day's end. Having little else in the way of seamy fodder, the minority has chosen to focus on the dangers of judicial wiseLatinawomanism, and all that it implies ... and, as became clear over the course of the hearings, what it implies (quite simply) is judicial activism. Indeed, WLW-gate appears to have provided the crucible for determining whether Judge Sotomayor is a latent racist, a hater of white men, and a jurist in the thrall of the demon known as "empathy." This is, admittedly, thin gruel -- perhaps too thin to sustain several days of hearings.

Some Senators (you know who you are, Senator Cornyn) made vague, but still hyperbolic, references to the danger of both judicial activism and the undesirable quality known as "empathy"). Others delighted the dorkiest spectators among us, including Yours Truly, with forays into the substantive. Notably, Sen. Arlen Spector complained about the decline in cert petitions granted, and Sen. Klobuchar expressed her intent to delve into SS's opinions on the Fourth Amendment, the Confrontation Clause, and sentencing law and policy. (Why the Fourth Amendment? Why the Confrontation Clause? Who knows. Hey: it sounded good.)

At the break, Sen. Graham's remarks, during which he announced that confirmation was guaranteed as long as SS could avoid a "meltdown," were much discussed. On CNN, an overly-tan Jeffrey Toobin fumbled with a complicated interactive touch-screen graphic, referred to as the "Magic Wall," in an attempt to explain Ricci v. DeStafano. Using the Magic Wall, Toobin could flip through tabs marked "Topic," "Issue," "Ruling," and "Outcome," but he appeared somewhat intimidated by the apparatus. Indeed, the Magic Wall had the creepy quality of a law school IRAC brief that had grown, Seymour-like, and gotten its own Facebook page. Incidentally, Ricci himself will testify (as a minority witness) this week at the hearings. Why? Because he's a firefighter, and anyone who rules against firefighters is a terrorist ... an empathetic, wise, Latina terrorist.

After the lunch break, things proceeded quickly. (Sen. Leahy indicated that he wanted to end the session early because SS might be in pain due to her casted ankle. Clerquette suspects that 9, and possibly 18, holes beckoned certain committee members.) The crowd waited breathlessly for Al Franken to speak, and, secondarily, for SS's remarks. When Franken finally took the floor, this blogress heard the collective intake of breath as a chamber full of spectators waited for him to say something funny. "Drop the funny bomb!" they seemed to plead wordlessly. Franken declined, sticking to an uneventful round of shout-outs and a few heartfelt words about how seriously he takes Senatorhood. Unspoken was the sentiment, clear from his body language, that Norm Coleman could suck it. The post-show consensus: Franken was unfunny. From Wolf Blitzer to NPR, Franken was panned for his unfunniness. Poor Franken.

Finally, Sotomayor spoke. She seemed visibly relieved at the chance to tell her own, beautifully inspiring story. In her brief remarks, she pronounced her "fidelity" to the rule of law, her respect for the Constitution, and her commitment to impartiality. Since, however, she did not deny that she was a wise Latina woman (and therefore better able than crusty white men to determine the appropriate outcome in a given case), the inquiry into her pernicious brand of wise, Latina wisdom will resume tomorrow.

Welcome back, Groupies! The above-signed blogress can hardly wait to see what the afternoon holds ... more slavish praise for Judge Sotomayor's humble beginnings? More debate about the merits of empathy? More, and more technical, sports analogies? Al Franken? We hope you'll check in with us throughout the day. Keep refreshing your browser, and scroll down for the latest news.

2:04: The soldiers have returned from lunch. Expect intense head-nodding to set in around 3:22. In the meantime, Sen. Amy Klobuchar (D-MN) discusses the modest roots of past Supreme Court Justices, for which this blogress is immensely grateful. (The Nancy Drew story is dangerously close to turning has become unbearably treacly, friends.) Klobuchar makes reference to a few particularly delightful Supreme factoids, such as Justice O'Connor's early life on a ranch (where she rode horses, branded cattle, and presumably weighed in on tough cases, like whether beef was, in fact, what was for dinner, or under what standard pork could be considered "the other" white meat). Sen. Klobuchar makes some "it takes all kinds" remarks about the richness and diversity of - gasp! - the Senate Judiciary Committee itself. By way of illustration, she mentions that Senator Hatch is a fervent devotee (and writer of) gospel music, while Senator Leahy is an inveterate fan of the Grateful Dead. Is it Clerquette's imagination, or did Amy Klobuchar just juxtapose, with crystal clarity, the hopeless stodginess of the Republican party and the slightly crunchy coolness of the Dems?

Sen. Klobuchar focuses on the accomplishments of women (i.e., Supreme predecessors O'Connor and Ginsburg) and, in this blogress's opinion, strikes the right note -- less "wise Latina woman" and more "I am woman, hear me roar, express my understanding of frontline law enforcement, and opine on the Fourth Amendment, the Confrontation Clause, and Sentencing law and policy. You go, girl!

2:16: Senator Ted Kaufman (D-Delaware) breaks new ground by praising Judge Sotomayor and her splendiferous apotheosis to the status of Nominated One, and dances delicately around the issue of government regulation of big businesses. As the Senator from Delaware, Mr. Kaufman, couldn't you have chosen something a bit less controversial to your constituents, like abortion?

2:19: The famously crotchety Senator Arlen Specter (D[ish]-Pa)takes the floor. He laments the shrinking docket of the High Court, and launches into a deliciously nerdy disquisition on circuit splits and the topic of standing: the silent killer [of cert petitions]. Specifically, Sen. Specter asserts, the court shoulda, coulda heard a recent warrantless wiretapping case. Their failure to do so seems to fill Sen. Specter with genuine disappointment. Clerquette wonders if the Supremes feel like a bunch of meanies. Specter asks whether Justice Sotomayor would allow cameras in the courtoom.

2:30: Senator-delayed Al Franken, the gentleman from Minnesota, takes the floor. Sen. Franken takes several minutes to greet his new colleagues. Everyone (this blogress included) appears to be waiting with bated breath for him to say something funny. C'mon, Al. Say something funny. Just do. Al? Alas, in the midst of Sen. Franken's maiden voyage into loftyland, there is a kerfuffle somewhere off-camera, in the back of the room. Sen. Leahy interrupts abruptly and asks the police to remove another heckler. Was there a Stuart Smalley comment?

Sen. Franken is slightly rattled. He rebounds, however, by pointing out SS's qualifications and her inspirational story. Franken points out that he is the most recently sworn member of the Committee, and (though he doesn't say so explicitly), the best conduit to the common folk, all of whom have a "huge stake" in who sits on the Supreme Court. Franken also has a great deal of [recent] experience with lawyers, and, honey: he knows lawyers.

In essence, he says, he is not in favor of judicial activism. But he would like to remind us that the Supreme Court is the last resort for [insert characteristics of downtrodden groups here]. Voters, scorned employees, the economically depressed, putative Senators-elect: where would they go, if not to the empathetic justices of the high court? Franken wraps up before the music starts to play, promising to listen raptly as she discusses the appropriate balance between judicial activism and judicial restraint. Nothing funny is said. Crowd seems disappointed.

2:40: Senator Schumer spends several minutes recpaitulating his previously-expressed sentiments: we the live in the land of the free, this would not have happened anywhere else, something something four-score-and-seven years ago. Clerquette believes that this was a gratuitous expression of Schumer's inner Lincoln fantasy. Schumer engages in high-cringe description of SS's humble beginnings as she sits at his elbow, looking frozen.

2:45: New Senator Kirsten Gillibrand (D-NY) enjoys a moment in the sun. Clerquette wonders if she still has that new-Senator smell. Clerquette also finds her shiny jacquard jacket indicative of a bit too much effort, perhaps? Gillibrand is interrupted in the middle of a overly long speech. Her time has run out, and Sen. Leahy grunts audibly when she asks for permission to finish her thought.

2:54: Finally, SS is sworn and takes the microphone. Looking infinitely more comfortable -- silence clearly does not suit the Supreme Diva-Elect!-- SS thanks the Senators and her mother. Camera pans to her mother, who looks as though she has been sent by Central Casting to fill the role of warm, tear-inducing, supportive mom.

SS quickly revisits her humble upbringing, her career trajectory, and her role in the Major League Baseball strike litigation. Go team! She announces her judicial philosophy: to wit, that the task of a judge is not to make the law, but to apply the law. (Take that, naysayers! Activist, schmacktivist.) SS then maintains that she is dedicated to the most faithful interpretation of, or "fidelity to" the rule of law. Following these bold statements, she concludes her remarks. Senator Leahy adjourns the hearing until 9:30 tomorrow morning. Judge Sotomayor leaves, looking cheerful. If high fiving occurred, it was not captured on camera.

Whew! What a morning! Day one of the Sotomayor confirmation hearing opened with the usual pomp and circumstance, some stiff laughter, and a ranting heckler. In the first inning (to borrow from the sports-analogy-laden parlance of the Judiciary Committee), we were treated to the rhetorical flourishes of Committee favorites Sessions, Graham, Schumer, Feingold, Cornyn, Durbin, and the like. Those from the conservative side of the aisle posited that Judge Sotomayor may simply toss aside the Constitution and rely, instead, on Latina wisdom. Sotomayor sympathizers countered with increasingly adulatory pronouncements about the wonder, the glory -- the phenomenon -- that is Sonia Sotomayor (and everything she stands for, including traction with the Latino/Hispanic community in the mid-term elections).

Stay tuned, dear readers: the Committee is on a lunch break now, but will be back at 2 pm. Clerquette will be liveblogging, and awaiting Al Franken's senatorial debut.

Are we ready for some live action from the Sotomayor hearings, dear readers? Though late to the starting line, the above-signed blogress can smell the eloquence lingering in the air ... a remnant, presumably, of the last hour's Senatorial pronouncements. Keep refreshing your browser (and then scroll down) for updates as they roll in.

11:13: Sen. Feingold has finished a protracted story using the illustrative device of small-town Wisconsin. Minority Whip Senator Jon Kyl takes the floor. Makes polite case for why Judge Sotomayor is a dangerous breed, and certain to decide cases based on her gut feeling. Sotomayor looks like she might like to benchslap Kyl, but offers uncomfortable smile instead.

11:21: Senator Leahy sounds like he may have taken a pre-hearing Benadryl.

11:23: Senator Lindsay Graham (R-SC) assures Judge Sotomayor that she will be confirmed unless she has a total "meltdown." Expresses confidence that there will be no such "meltdown." Condescension drips visibly from his words.

Graham insists that, given the opportunity, he would not have chosen Sotomayor. He would have chosen Miguel Estrada! Ha: take that! And, he reminds us, though Estrada was a Honduran immigrant, highly qualified, and a Honduran immigrant, the Democrats would not have voted for him. He was also a Honduran immigrant. Sadly, the Democrats did not give Judge Estrada a chance to have his moment in the sun. Thus, Democrats hate Honduran immigrants.

Sen. Graham insists that, if he made a "wise Latino [sic] comment," his career would be over. (Perhaps because he is not Latino?) He "needs her to understand that," and points out that her "experience do'nt make her better than anyone else." Camera pans to Judge Sotomayor, tightly suppressing a sneer. Sen Graham mentions that he worked his butt off for Sen. McCain's election but that "we lost." In other news, the earth continues to turn on its axis. Is Sen. Graham working through some issues? Make "I" statements, Lindsay, like we discussed in therapy. Tell us how it makes you feel. As if on cue, Sen. Graham wonders whether Sotomayor has "earned the right to be here," and says, if "I give you this robe to put on ... " Own it, Lindsay! Own the confirmation process!

11:34: Sen. Benjamin Cardin (D-Md)'s grandfather came to this country over 100 years ago. He thinks it was somehow related to the First Amendment. Or something. In any event, Sen. Cardin is grateful for the benefits, bestowed by the First Amendment, upon him and his Jewish family. Still, he remembers the dark days when Jews were not allowed to swim in the local pool. And (wait for it) ... segue to Brown v. Board of Ed is complete! Nice work, Sen. Cardin!

His point, dear readers: the Constitution is a living document. Republicans, off camera, flinch. The ideal justice, Sen. Cardin continues, should have a "mainstream" philosophy, an interest in protecting individual and civil rights, and a respect for established law. Also, the ideal justice should be nice to kittens, and not a total asshole.

11:43: Senator Leahy promises that a problematic sign, sitting in front of Judge Sotomayor on the table, will be removed during the upcoming break. This does not, he assures her, mean that she will not have a place to sit. Tension causes everyone to laugh heartily.

Cornyn provides earnest explanation of strict construction. In Cornyn's opinion, the Court has "micromanaged" the death penalty, regulated sexual relations, and even rewritten the rules of golf. That last one hurts, people. It really, really hurts.

In addition, Cornyn continues, other rights have been neglected, such the First and Second Amendment rights afforded by the Commerce Clause. (Hmm.) Please, he asks Sotomayor plaintively: don't invent new rights, and kick old, established rights to the curb. It makes those rights sad.

Before casting his vote, Cornyn says, he needs to know more about Sotomayor's judicial philosophy. Though she has something of a record, her work as a lower court judge is analogous to the work of a quarterback, who carries out orders. What will she do if promoted to the coaching staff? He is particularly concerned about her view of the Second Amendment and the Fourteenth Amendment. He is also concerned about Judge Sotomayor's confessed tendency toward changing the law on a whim (Clerquette paraphrases here) and borrowing from weirdo foreign law.

12:10: Senator Sheldon Whitehouse (D-RI): Sen. Whitehouse rejects Justice Roberts's "umpire" analogy. Rather, explains Whitehouse, the job of a justice is to define the strike zone. Clerquette wonders if sports other than baseball and football - the discrete, insular minority comprised of badminton, curling, and that event where you ski between stations and shoot stuff - will be given equal protection.

Sen. Whitehouse posits that Justice Roberts is a shitty umpire because (as reported by Jeffrey Toobin), he generally finds in favor of the government/corporation/jailer and against the little guy, whether the little guy is a prisoner, employee, or endangered bird. Whitehouse is looking for a justice who can use her broad discretion to call the balls and strikes a bit more equitably. He, for one, believes that Judge Sotomayor's life experience will inform her judicial perspective. For starters, it will help her to make more empathetic decisions about a number of hypothetical downtrodden people, like the woman who keeps getting an automated system when she calls the bank because her home is in foreclosure, or those who live in neighborhoods where the police only come in raid jackets. It is not clear why these people are plaintiffs. If getting passed through an endless cycle of automated messages is actionable, please email me at Clerquette@gmail.com. I will need immediate assistance drawing up a complaint.

12:20: Senator Tom Coburn (R-Ok) tells Judge Sotomayor that he is troubled by her belief that "law is uncertain," that judges make policy, and that "race and ethnicity" make someone "a better judge." He chides her for rejecting the notion of pure impartiality and neutrality. The discussion veers dangerously close to metaphysical, better-debated-when-high distinctions.

Sen. Coburn says that, in his opinion, empathy should not be a component of one's judicial approach. Empathy, schmempathy! Empathy is nothing more than bias in sheep's clothing! Judging isn't about relating to people: it's about cold, hard laws and their neutral application. Harden up, folks.

12:29: Sen. Dick Durbin (D-Illinois) welcomes Sotomayor warmly. Confirmation hearings, he says, can be painful ... but no more painful than breaking one's ankle or having to meet with 89 senators. She smiles gratefully.

12:32: Off camera, an outburst stirs the crowd. The camera shows the Capitol Police removing a heckler. No shoes are thrown. Heckler's message unclear.

12:33: Senator Leahy scolds the crowd, bellowing, "You are all guests of the Senate! You will show respect!" Clerquette wonders whether the furniture is covered with plastic. Sen. Leahy would KILL you if he knew you spilled your soda on one of the nice upholstered chairs.

12:35: Senator Durbin takes Judge Sotomayor on a stroll through her own, illustrious past. Sadly, he appears to have been upstaged by the heckler. His message: Judge Sotomayor is really, really qualified.

Stay tuned, Groupies! Yours truly will be liveblogging the confirmation hearings for your reading pleasure. In addition to the fabulous coverage of the Supreme Court confirmation hearing provided by our friends over at Above the Law, we will bring you the most delightful live-bloggage we can muster, starting around 10:30.

We look forward to hearing more about what lurks under Judge Sotomayor's robe, and passing along the details (juicy and otherwise) to you, dear readers.